Beyond Localism: Harnessing State Adaptation Lawmaking to Facilitate Local Climate Resilience

Abstract

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans tend to focus almost entirely on accommodation strategies, even when retreat strategies are warranted. The result is the continued use of land-use planning and zoning practices that allow for intensified land uses in risk-prone areas. Such maladaptive development carries with it current and future costs from locking in infrastructure and patterns of development that place people and property in harm’s way. When addressing this preparedness gap, many scholars focus on flaws in the federal flood insurance and disaster assistance programs. This Article builds on a small but growing literature on the potential for land use and other local lawmaking regimes to proactively facilitate climate resilience, and the barriers local governments face that cause them to continue to promote maladaptive development. Using New York’s recently enacted adaptation law as a case study, I ask whether state mandates and incentives, although facially limiting of local autonomy, are nevertheless needed to empower local governments to overcome otherwise intractable obstacles to decreasing the intensity of development in vulnerable areas. I conclude by identifying specific attributes of state adaptation lawmaking that may be needed to support and encourage local government efforts to promote resilience. Ultimately, I conclude that, by helping local governments overcome barriers to robust adaptive development, state lawmaking has the potential to empower local governments to proactively move people and infrastructure out of harm’s way.